Cracking cyber messages threat to 4th Amendment

By Peter Kent

Imagine a time, not so long from now, when everyone will be able to carry a mini-transmitter. I'm not talking about a cell phone, but a low-cost device that would allow everyone's words to be transmitted directly to the police at any time.

Whenever a law-enforcement organization wants to do so it will be able to select a particular person, activate that person's transmitter, and find out what that person is up to, wherever he happens to be. Oh, and let's forget court orders, shall we; let's allow the police -- and various other government agencies -- to do this at will.

Would a free society allow a law to be passed that would permit the police to listen in on anything and everything you have to say, even in private? Such a scenario is technologically possible, or will be soon. But is it politically possible? One would hope not ... but then, look at what's happening in cyberspace right now.

The Security and Freedom Through Encryption Act of 1997, or SAFE, was originally designed to loosen government controls on encryption. It would allow Americans to use just about any kind of encryption software they wanted, even software that cannot be "cracked" by the government. It also would allow American companies to export most types of encryption software, if a comparable product were available from a foreign competitor, which means pretty much any kind of encryption software could be exported.

All well and good -- until the bill was almost hijacked by the right wing. The FBI backed an amendment to the bill presented by Representatives Oxley of Ohio and Manton of New York, an amendment that bans all encryption software that does not provide "immediate access" to the plain-text version of the encrypted message for law enforcement organizations.

In other words, the FBI and police want an way to immediately "crack" the message. Oh, and it must be possible to crack the message without the knowledge of the person sending or receiving the message, according to this amendment. That, of course, presents the minor problem of being unconstitutional; the Fourth Amendment clearly bans such secret searches. Never mind, this is cyberspace, which somehow doesn't count.

Wait, though. It gets worse.

According to this amendment, not only should it be permissible for the police or FBI to crack a message without the subject being informed, they also should be allowed to do so without any kind of judicial oversight. To tap your phone the police need a court order. To read personal letters in your desk at home they need a warrant. To read your private messages on the Internet they would need no special authorization.

Why is cyberspace regarded as somehow less deserving of the normal constitutional protections? Why shouldn't people be allowed to hold completely private conversations in cyberspace? Or, perhaps more to the point, if private conversations are not allowed in cyberspace, why should they be allowed outside cyberspace? If the government has the right to say "we want to hear what you're saying," shouldn't they have the right to say the same about all conversations?

What then, if it was easy to listen in on all our private conversations, in cyberspace or out of it. The transmitters I mentioned earlier are no longer the stuff of science fiction. A system like this could be created, and soon.

Sound ridiculous? Maybe it does, but what's the real difference between such a scenario and the proposed encryption laws. Lawmakers want government and police organizations to be able to listen in to anything you say in cyberspace, without even having to get a court order. Remove the words "in cyberspace," and you have my "ridiculous" scenario.

There really isn't much difference between a private conversation in cyberspace and one outside cyberspace, out in the real world. Here's the major difference: One is automatically recorded, and one is not. A discussion in cyberspace has to be recorded in some manner; that's why encryption is so important. A discussion in the real world can be between two people, without any recording necessary. So it seems to me that what our lawmakers are really saying is this; "we want to be able to listen in on your private conversations ... because we can."

OK, so what sort of laws can we expect when they also can listen in on all our private conversations out in the real world?

The Oxley/Manton Amendment is, for the moment, dead. It was defeated when the House of Representatives Commerce Committee approved SAFE without the amendment; perhaps they were intimidated by the 30 law professors who pointed out that the amendment was unconstitutional. But this is a battle won, not the war.

It now seems quite likely that SAFE itself will not pass -- it almost certainly won't reach the House floor any time soon, and indeed must first clear the House rules committee, where further modifications will be attempted.

The encryption battle has been going on now for several years, and we haven't seen the end of it. At some point the United States will have to decide whether privacy is a right, or merely a luxury that we can do without.

Peter Kent is the author of Poor Richard's Web Site: Geek-Free Commonsense Advice on Building a Low-Cost Web Site (http://www.poorrichard.com/).